In re Haro CA1/2

Filed 3/26/14 In re Haro CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re RANDOLPH HARO, A137968 on Habeas Corpus. (Solano County Super. Ct. No. FCR282399)

The Department of Corrections and Rehabilitation (CDCR) has a demonstrated problem in its practice of classifying and segregating inmates by race. After the United States Supreme Court held that the practice must satisfy strict scrutiny to pass constitutional muster (Johnson v. California (2005) 543 U.S. 499 (Johnson)), opponents of the practice began a series of lawsuits aimed at specific institutions. In In re Morales (2013) 212 Cal.App.4th 1410 (Morales), Division Three of this District considered an order granting relief in habeas corpus to an inmate of Pelican Bay State Prison who challenged the institution’s practice of what was characterized as granting “preferential treatment of inmates on the basis of ethnicity.”1 (Id. at p. 1412.) Division Three announced its decision as follows: “The trial court here applied Johnson and found that ‘there are more narrowly tailored means of controlling violence than to restrict entire ethnic groups.’ The court ordered the prison ‘to refrain from affording preferential

1 The Morales court described the preference as follows: “Pelican Bay racially segregates prisoners and, during extended periods of perceived threatened violence, denies family visits, work assignments, yard exercise, religious services and other privileges to prisoners of one race while granting those same privileges to prisoners of other races.” (Morales, supra, 212 Cal.App.4th 1410, 1412.)

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treatment to inmates on the basis of ethnicity’ but the order permits prison officials to ‘separate inmates on the basis of ethnicity, if prison security requires it, so long as it is not done preferentially’ and is done ‘[o]n a short-term emergency basis. We affirm” (Id. at p. 1413, fn. omitted) This appeal involves only that proviso. Randolph Haro was a former inmate at Solano State Prison2 who challenged that institution’s alleged practice of race-related segregation during periods of “modified program,” a form of lock-down.3 After a three-day evidentiary hearing, the trial court concluded: “The ‘modified program’ classification system is clearly race-based and cannot survive a strict scrutiny analysis.” On the basis of this conclusion, the trial court ordered as follows: “(1) Respondent shall refrain from affording preferential treatment to inmates on the basis of ethnicity. Specifically, respondent shall not subject any inmate, including petitioner, to its ‘modified program’ or any other version of ‘lockdown’ based on that inmate’s race or ethnic background alone. While respondent, in its discretion, may lockdown all or part of the prison, and may release inmates from lockdown based upon individual behavior and upon informed predictions of individual behavior, it may not do